American Safety Casualty Insurance v. New York City School Construction Authority

Appellate Division of the Supreme Court of New York

American Safety Casualty Insurance v. New York City School Construction Authority

33 A.D.3d 441, 823 N.Y.S.2d 19

CourtAppellate Division of the Supreme Court of the State of New York

DecidedOctober 17, 2006

StatusPublished

Cited by2 cases

This text of 33 A.D.3d 441 (American Safety Casualty Insurance v. New York City School Construction Authority) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

American Safety Casualty Insurance v. New York City School Construction Authority, 33 A.D.3d 441, 823 N.Y.S.2d 19 (N.Y. Ct. App. 2006).

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Opinion

Judgment, Supreme Court, New York County (Jane S. Solomon, J.), entered August 10, 2005, in an action by plaintiff surety against defendant public authority to recover proceeds of construction contracts paid by defendant to a contractor that should have been paid to plaintiff pursuant to plaintiff’s indemnity agreement with the contractor, awarding plaintiff $128,834.54, plus interest, costs and disbursements, unanimously affirmed, without costs.

At the hearing to assess damages, plaintiff argued that by failing to respond to its notice to admit, defendant admitted that it owed plaintiff $128,000. Defendant responded that three years earlier, before summary judgment on the issue of liability had been granted plaintiff (16 AD3d 138 [2005]), it provided answers to interrogatories showing how much it had paid the contractor, and argued that, because plaintiff never amended its notice of claim (Fublic Authorities Law § 1744), which sought damages in an amount that “equals or exceeds as currently ascertained the sum of $55,000.00,” plaintiff could recover no more than $55,000. The assessment court properly permitted plaintiff to amend the notice of claim and complaint to conform to the evidence, absent a showing of prejudice (see Rondout Elec, v Dover Union Free School Dist., 304 AD2d 808 [2003]). Manifestly, there was no prejudice here, as plaintiff became aware of its full damages only because defendant provided that information years earlier. Defendant’s reliance on Varsity Tr., Inc. v Board of Educ. of City of N.Y. (5 NY3d 532 [2005]) is misplaced. There, the Court of Appeals held that Education [442]*442Law § 3813 (1) required the plaintiff to file a new notice of claim for damages that continued to accrue after the action started as a result of a continuing breach of contract. Here, plaintiffs damages remained constant throughout; plaintiff was simply unaware of the amount. Concur—Saxe, J.P., Marlow, Nardelli, Sweeny and Catterson, JJ.

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Judgment, Supreme Court, New York County (Jane S. Solomon, J.), entered August 10, 2005, in an action by plaintiff surety against defendant public authority to recover proceeds of construction contracts paid by defendant to a contractor that should have been paid to plaintiff pursuant to plaintiff’s indemnity agreement with the contractor, awarding plaintiff $128,834.54, plus interest, costs and disbursements, unanimously affirmed, without costs.

At the hearing to assess damages, plaintiff argued that by failing to respond to its notice to admit, defendant admitted that it owed plaintiff $128,000. Defendant responded that three years earlier, before summary judgment on the issue of liability had been granted plaintiff (16 AD3d 138 [2005]), it provided answers to interrogatories showing how much it had paid the contractor, and argued that, because plaintiff never amended its notice of claim (Fublic Authorities Law § 1744), which sought damages in an amount that “equals or exceeds as currently ascertained the sum of $55,000.00,” plaintiff could recover no more than $55,000. The assessment court properly permitted plaintiff to amend the notice of claim and complaint to conform to the evidence, absent a showing of prejudice (see Rondout Elec, v Dover Union Free School Dist., 304 AD2d 808 [2003]). Manifestly, there was no prejudice here, as plaintiff became aware of its full damages only because defendant provided that information years earlier. Defendant’s reliance on Varsity Tr., Inc. v Board of Educ. of City of N.Y. (5 NY3d 532 [2005]) is misplaced. There, the Court of Appeals held that Education [442]*442Law § 3813 (1) required the plaintiff to file a new notice of claim for damages that continued to accrue after the action started as a result of a continuing breach of contract. Here, plaintiffs damages remained constant throughout; plaintiff was simply unaware of the amount. Concur—Saxe, J.P., Marlow, Nardelli, Sweeny and Catterson, JJ.

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Bluebook (online)

33 A.D.3d 441, 823 N.Y.S.2d 19, Counsel Stack Legal Research, https://law.counselstack.com/opinion/american-safety-casualty-insurance-v-new-york-city-school-construction-nyappdiv-2006.

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